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Tuesday, February 16, 2010

"Am I Jewish, or what?"

Perhaps you've seen the news about Joseph Reyes, the Chicago divorced father who baptized his three year old daughter as Catholic. As a family law lawyer, that raises a red flag. In a divorce, usually one parent is designated to make religious decisions for the child.

Apparently, in this case, it was the Mother.

Mom is Jewish. At one time, Dad was apparently Catholic. When the parties married, Dad converted to Judaism and agreed to raise the child in the Jewish tradition. When the parties divorced, Mom received custody of the daughter and apparently obtained the authority to make religious decisions for their daughter.

There are four categories of "major decisions" which comprise legal custody: medical, educational, extracurricular, and religion. These distinctions are ever evolving, as is the nature of law, as is the nature of society. For example, the extracurricular category didn't exist 10 years ago.

In the religion category, one parent, usually the primary physical custodian, makes decisions about in which, if any, religion the child will be indoctrinated. Even so, there is no requirement that the non-custodial parent take the child to the custodial parent's church or even to a church of the custodial parent's denomination. There is no prohibition against the non-custodial parent taking the child to his own church on Sunday morning or Saturday afternoon or even during the Solstice. The prohibition is against overt acts which would create identity, such as baptism. Which is where we re-join our story.

Mr. Reyes not only took his daughter to Mass but he had her baptized Catholic, asserting, then, a Catholic identity. Mom hit the roof and obtained a restraining order against Dad from exposing the daughter to any religion but Judaism. Dad, not content with the negative spotlight already upon him, next notified the local television station that he was taking his daughter to Mass again, this time in living color on every Chicagoan's evening news. Now, Dad is looking at six months in lock up for contempt. I suspect that not only will daughter not be attending Mass in those six months, she probably won't be seeing a lot of Dad during that time, either. And she probably still won't be seeing a lot of Dad after his release.

This case is not about religious freedom. It is entirely possible that the Judge's Order prohibiting Dad from exposing his daughter to any religion but Judaism is unconstitutional. But there was no emergency need to rush the daughter to Mass. Dad did not have to violate the Judge's Order. Dad could have revisited the Judge's Order in many ways, Appeal, Motion to Reconsider, Motion for New Trial. And Dad could have been successful. But Dad took daughter to Mass, in wilful contempt for the Judge's Order, with the television cameras rolling, just to make it personal for the Judge. And I suspect he did.

This case is about power, Dad's power. First, Dad's effort to assert power over Mom. Now, Dad's effort to assert power over the Judge. And truly, Dad has power over neither.

Dad will quite possibly go to jail. I can imagine an outcry from an ill informed religous cabal that Dad's incarceration would be discriminatory, that he would be a martyr, but Dad was clearly in wilful contempt and jail would be appropriate. Further, Dad will have his access to his daughter significantly curtailed. He might be looking at supervised visits next fall, when he is released from jail.

Finally, and this tells you a lot about the story, Dad is a law student. Law students are supposed to show respect, not contempt for the law. It is quite possible that Dad will not be allowed to sit for the Bar, to become a lawyer. It is also possible that his stunt is an Honor Code violation for law students at his law school, which will result in his expulsion.

Given the brief 15 minutes of fame that will flow from Mr. Reyes' infamy, I'm reminded of Dr. Phil's famous question, "So, Dad, how's that working out for you?"